Professional Documents
Culture Documents
ANNE K. BINGAMAN
Assistant Attorney General
DIANE P. WOOD
Deputy Assistant Attorney General
ROBERT B. NICHOLSON
ROBERT J. WIGGERS
Attorneys
Department of Justice
Washington, D.C. 20530
(202) 514-2460
TABLE OF CONTENTS
Page
INTEREST OF THE UNITED STATES . . . . . . . . . . . . . . . . . . . . . 1
ISSUE PRESENTED . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
STATEMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
1. Background . . . . . . . . . . . . . . . . . . . . . . . . . . 2
2. The Panel Decision . . . . . . . . . . . . . . . . . . . . . . 3
ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
THE CONCERTED IMPOSITION OF TERMS BY EMPLOYERS ON EMPLOYEES IS
NOT EXEMPT FROM THE ANTITRUST LAWS . . . . . . . . . . . . . . . . 5
CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
TABLE OF AUTHORITIES
Page
Cases:
Allen Bradley Co. v. Local 3, IBEW, 325 U.S. 797 (1945) . . . . . . . . 7
ii
Teamsters Union v. Oliver, 358 U.S. 283 (1959) . . . . . . . . . . . . 7
Statutes:
iii
IN THE UNITED STATES COURT OF APPEALS
FOR THE DISTRICT OF COLUMBIA CIRCUIT
__________________________
Nos. 93-7165 et al.
__________________________
ANTONY BROWN, ET AL.,
Appellees-Petitioners,
v.
PRO FOOTBALL, INC., ET AL.
Appellants.
__________________________
1
Simultaneously with this Brief, the United States is
filing a motion for leave to file it in support of appellants'
suggestion for rehearing in banc.
ISSUE PRESENTED
Whether the National Labor Relations Act requires employees
to forego unionization in order to bring an antitrust suit
against employers who, by agreement among themselves, fix the
wages of the employees.
STATEMENT
1. Background.
This is an antitrust suit by professional football players
who were placed on "developmental squads" of National Football
League teams, and paid salaries agreed upon among the team
owners. A collective bargaining agreement, which had no
provision for developmental squads, expired in 1987. The teams
subsequently created these squads, and after union-management
negotiations about compensation for squad members reached an
impasse, the teams agreed among themselves to impose the salaries
2
awarded damages which, when trebled, totalled over $30 million
and also permanently enjoined the defendants from setting regular
season salaries for any category of players. Brown v. Pro
3
in, respectively, Powell v. NFL, 930 F.2d 1293 (8th Cir. 1989),
cert. denied, 498 U.S. 1040 (1991), and National Basketball
Association v. Williams, 45 F.3d 684 (2d Cir. 1995). Moreover,
4
ARGUMENT
THE CONCERTED IMPOSITION OF TERMS BY EMPLOYERS ON
EMPLOYEES IS NOT EXEMPT FROM THE ANTITRUST LAWS
The sweeping antitrust immunity adopted by the majority has
no support in Supreme Court precedent. Its requirement that
their action was not immune from scrutiny under the antitrust
laws.
1. The immunity for unilateral employer group action
5
The Supreme Court's limitation to "union-employer
agreements" was not inadvertent. Well before enactment of the
NLRA, concerted action by a group of employers to control the
labor market was recognized as unlawful under the antitrust laws.
E.g., Anderson v. Shipowners Ass'n, 272 U.S. 359 (1926). The
roots of the nonstatutory exemption, on the other hand, are
firmly grounded in the statutory exemption for employees, which
applies only "[s]o long as a union acts in its self-interest and
does not combine with non-labor groups." United States v.
6
supra, at 691-97; Teamsters Union v. Oliver, 358 U.S. 283, 293-94
(1959), with FMC v. Pacific Maritime Ass'n, 435 U.S. 40, 61-62 &
n.20 (1978); United Mine Workers v. Pennington, supra 666-67;
Allen Bradley Co. v. Local 3, IBEW, 325 U.S. 797, 809-11 (1945).2
Thus the Eighth Circuit was merely stating established law
when it held that the nonstatutory exemption applies only to
agreements that are "the product of bona fide arm's length
bargaining" with the unions. Mackey v. National Football League,
543 F.2d 606, 614 (8th Cir. 1976), cert. dismissed, 434 U.S. 801
"[w]hen there are two acts upon the same subject, the rule is to
2
In Connell, even an agreement with a union was held non-
exempt in part because the union did not represent the signatory
firm's employees. 421 U.S. at 625-26.
3
Even the Eighth Circuit's more recent decision in Powell
v. National Football League, supra, places its roots in this
well-established body of precedent.
7
give effect to both if possible." United States v. Borden, 308
U.S. 188, 198 (1939). Creation of a new implied antitrust
immunity under the NLRA is a form of implied repeal. It is
unions. See American Ship Bldg. Co. v. NLRB, 380 U.S. 300, 316
(1965).4 In that context, they have not come close to making the
4
Since these workers have chosen a union and would be
deprived of that choice as the price of bringing an antitrust
suit, the proposed new exemption stands on its head the concept
of "voluntary unionism" embodied in the labor laws. Compare
Pattern Makers' League v. NLRB, 473 U.S. 95, 105 (1985)(cited
at slip op. 18).
8
showing necessary for an immunity based on the process of
bargaining.
The NLRA does primarily regulate the process of collective
bargaining (slip op. 16). Under the labor laws, however, that
process is not an end in itself, but a means to an end. It is a
"process that look[s] to the ordering of the parties' industrial
relationship through the formation of a contract." NLRB v.
Insurance Agents' Int'l Union, 361 U.S. 477, 485 (1960). The
existing nonstatutory labor exemption, therefore, is simply a
common sense recognition of the fact that the ultimate purpose of
the labor laws and of the statutory labor exemption would be
frustrated if such labor contracts, once reached, were declared
invalid under the antitrust laws. See Meat Cutters v. Jewel Tea
Co., supra, 381 U.S. 711-12 (opinion of Goldberg, J.). The only
question in such cases is how far into the product market the
5
Three sets of opinions in the Pennington and Jewel Tea
cases illustrate the dispute. Justice Goldberg would have held
the agreements in both cases exempt from the antitrust laws as
union contracts involving mandatory subjects of collective
bargaining. 381 U.S. at 735. Justice Douglas would have held
both agreements fully subject to the antitrust laws because they
restrained the product markets. Id. at 672, 735. Justice White
writing for the Court in Pennington found that wage agreement not
exempt because it imposed terms outside the bargaining unit, id.
at 665-66, and in Jewel Tea he thought the agreement exempt
because the restraint on marketing hours had an "immediate and
direct" effect on the working hours of the covered employees.
Id. at 691.
6
In the case of sports leagues, their joint venture
characteristics might sometimes justify rule of reason treatment
of unilateral league restraints on wage competition that would be
considered per se illegal in different industries. See McNeil v.
NFL, 790 F. Supp. 871, 896-97 (D.Minn. 1992). That is a matter
separate from any labor exemption, however, and is not before the
Court.
10
361 U.S. at 490. Indeed, the Supreme Court specifically held in
that case that the Board may not attempt to "regulate the choice
of economic weapons that may be used as part of collective
bargaining." Id. at 490-98. But that is precisely what the
majority has done here. It strips organized employees of an
antitrust cause of action because it considers such a suit too
11
the antitrust exemption were withdrawn before impasse, employers
would risk treble damage liability under the antitrust laws by
complying with the labor laws' mandate to maintain the prior
collectively set terms. But once impasse occurs, employers are
free under the labor laws to alter the status quo and impose new
terms of employment without regard to the union's consent, so
12
occurred and their intention to impose their terms even without
the union's agreement.7
CONCLUSION
ANNE K. BINGAMAN
Assistant Attorney General
DIANE P. WOOD
Deputy Assistant Attorney General
___________________
ROBERT B. NICHOLSON
ROBERT J. WIGGERS
Attorneys
Department of Justice
Washington, D.C. 20530
(202) 514-2460
MAY 1995
7
When the members of a multi-employer group do impose
terms, they may avoid antitrust liability by not acting in
concert with each other--a result fully consonant with the labor
laws, which leave individual employers at this point free to make
temporary individual deals with the union pending adoption of a
unit-wide agreement. Charles D. Bonanno Linen Service, Inc. v.
NLRB, 454 U.S. 404, 414-15 (1982).
13
CERTIFICATE OF SERVICE
I, Robert B. Nicholson, a member of the bar of this Court,
hereby certify that today, May 5, 1995, I caused copies of the
accompanying BRIEF FOR THE UITED STATES AS AMICUS CURIAE to be
served by first class mail on:
Gregg H. Levy, Esq.
Covington & Burling
1201 Pennsylvania Avenue, N.W.
Washington, D.C. 20004
__________________________
ROBERT B. NICHOLSON
__________________________
ROBERT B. NICHOLSON
14